Case No. IT-98-34-A


Judge Fausto Pocar, Presiding
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Andrésia Vaz
Judge Wolfgang Schomburg

Mr. Hans Holthuis

Decision of:
13 October 2005



Mladen Naletilic, aka “TUTA”
Vinko Martinovic, aka “STELA”




Office of the Prosecutor:

Mr. Peter M. Kremer, QC

Counsel for the Appellants:

Mr. Matthew Hennessy and Mr. Christopher Meek for Mladen Naletilic
Mr. Zelimir Par and Mr. Kurt Kerns for Vinko Martinovic

THE APPEALS CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 (“International Tribunal ”),

BEING SEIZED OF “Mladen Naletilic’s Motion for Leave to File his Pre-Submission Brief on Torture” filed by Mladen Naletilic (“Appellant”) on 2 September 2005 (“ Motion”), wherein the Appellant moves the Appeals Chamber for leave to submit a pre-submission brief on torture to assist the Appeals Chamber in considering Ground of Appeal XVII of the Appellant’s Revised Appeal Brief1 in preparation for the Appeals Hearing in this case scheduled for 17-18 October 2005;2

NOTING “Mladen Naletilic’s Pre-Submission Brief on Torture” filed by the Appellant on 2 September 2005 (“Pre-Submission Brief”);

NOTING the “Prosecution’s Response to Mladen Naletilic’s Motion for Leave to File Pre-Submission Brief” filed on 9 September 2005 (“Response”), wherein the Prosecution objects to the Motion on grounds that (i) the Appellant, through the Pre-Submission Brief, is actually seeking to add a new ground of appeal to his Notice of Appeal3 and Revised Appeal Brief ; (ii) the Appellant justifies his Motion on the basis of a document authored by the United States Department of Justice entitled “Legal Standards Applicable Under 18 U.S.C. §§ 2340-2340A” and dated 30 December 2004 (“December 2004 Memorandum”), but a large portion of the Pre-Submission Brief has no relation to that document ; (iii) the December 2004 Memorandum is in any event irrelevant to the Appeals Chamber’s determination of the Appellant’s Ground of Appeal XVII; and (iv) granting the Appellant’s Motion would prejudice the Prosecution at this late stage in the appeals proceedings in this case;4

NOTING “Mladen Naletilic’s Reply to the Prosecution’s Response to his Motion for Leave to File his Pre-Submission Brief on Torture” filed by the Appellant on 14 September 2005;5

NOTING the “‘December 2004 Memorandum’ to Accompany Mladen Naletilic’s Pre -Submission Brief on Torture” filed by the Appellant on 14 September 2005;

NOTING that the Appellant’s Ground of Appeal XVII alleges that “(t(he Trial Chamber erred in finding the accused guilty of ‘torture’ based on the evidence presented at trial” and both the Appellant’s Notice of Appeal and Revised Appeal Brief point the Appeals Chamber to paragraphs in the Trial Judgement6 summarizing the factual findings of the Trial Chamber with regard to torture and mistreatment;7

NOTING that the Appellant’s Revised Brief explicating the Appellant’s arguments under Ground of Appeal XVII does not challenge the Trial Chamber’s legal definition of torture or willfully causing great suffering; rather, the Appellant alleges that the Trial Chamber erred in finding that certain acts constituted torture on grounds that the evidence was insufficient to establish that they rose to the requisite level of seriousness required under that crime;8

NOTING that in his Pre-Submission Brief, the Appellant argues that (i) the Trial Chamber erred as a matter of law by convicting him for torture without “setting objective standards” for what kinds of conduct constitute infliction of “severe physical or mental pain or suffering” or what is the “requisite degree of severity necessary” for certain conduct to constitute torture; (ii) in the jurisprudence of the International Tribunal, only the Celibici Trial Judgement attempts to establish a threshold whereby mistreatment may rise to the level of torture but ultimately concludes that it is difficult to articulate the appropriate threshold with any degree of precision; (iii) a “reasonably objective standard” for what constitutes “severe physical or mental pain or suffering” is to be found in the December 2004 Memorandum; (iv) the Appeals Chamber should use the December 2004 Memorandum as a guide by which to review the evidence and the Trial Chamber’s factual findings that the Appellant committed torture; and (v) the Appeals Chamber should conclude under the standard set in the December 2004 Memorandum that the Trial Chamber erred in convicting the Appellant for torture;9

FINDING that the Pre-Submission Brief does not relate to or supplement the error alleged under Ground XVII of the Appellant’s Notice of Appeal and Revised Appeal Brief but rather raises a whole new ground of appeal and is thus outside of the scope of his appeal;

FINDING therefore that the Appellant should have sought leave from the Appeals Chamber to amend his Notice of Appeal pursuant to Rule 108 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”) and accordingly his Revised Appeal Brief as soon as possible after identifying the new alleged error raised in his Pre-Submission Brief; 10

CONSIDERING that Rule 108 of the Rules provides that “(t(he Appeals Chamber may, on good cause being shown by motion, authorize a variation of the grounds of appeal;”

CONSIDERING that the December 2004 Memorandum, which forms the basis for the Pre-Submission Brief, is dated 30 December 2004 and that the Appellant fails to explain why he only recently became aware of it or its implementation by the United States government such that he was only able to file his Motion and the December 2004 Memorandum approximately one month prior to the Appeals Hearing in this case ;

CONSIDERING that the Appellant’s Motion furthermore fails to demonstrate that there is good cause for the variation to the grounds of appeal that is sought by the Pre-Submission Brief, for example by showing that the variation would merely correct a minor error or provide a more precise formulation of a ground of appeal already alleged in the Appellant’s Notice of Appeal, that it would bring the Appellant’s Notice of Appeal into conformity with his Revised Appeal Brief, or that it would seek to remedy “inadvertence or negligence by an appellant’s counsel to plead a ground of appeal with sufficient clarity” such that the appellant should not be restricted from raising “that ground of appeal where that ground could be of substantial importance to the success of an appeal such as to lead to a miscarriage of justice if it is excluded”;11

CONSIDERING that the Prosecution did not address the arguments raised in the Appellant’s Pre-Submission Brief in its Response to the Appellant’s Revised Appeal Brief; 12

CONSIDERING that the Prosecution objects to the Pre-Submission Brief in its Response to the Motion on grounds that its admission would prejudice the Prosecution by introducing substantive additional arguments to the Appellant’s appeal close to the Appeals Hearing without allowing the Prosecution sufficient time in which to respond fully in writing;13

FINDING therefore that, in any event, had the Appellant filed a motion to amend his Notice of Appeal such that the new arguments raised in his Pre-Submission Brief should be incorporated therein, good cause would not exist for said amendment pursuant to Rule 108 of the Rules;

ON THE BASIS OF THE FOREGOING, the Appeals Chamber DISMISSES the Appellant’s Motion and DENIES his request therein for consideration of the Pre-Submission Brief on Torture or the December 2004 Memorandum.

Done in English and French, the English text being authoritative.

Judge Fausto Pocar,

Dated this 13th day of October 2005,
Done at The Hague,
The Netherlands.

[Seal of the Tribunal]

1 - Mladen Naletilic’s Revised Appeal Brief filed confidentially on 10 October 2003 (“Revised Appeal Brief”).
2 - Motion, paras. 1-3; see also Scheduling Order for Appeals Hearing, 16 September 2005.
3 - Notice of Appeal of Mladen Naletilic aka Tuta, 29 April 2003 (“Notice of Appeal”).
4 - Response, para. 3.
5 - The Appeals Chamber notes that pursuant to paragraph 14 of the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal (IT/155/Rev. 3), 16 September 2005, the Appellant’s Reply is filed one day out of time. The Appeals Chamber reminds the Appellant of his obligation to establish good cause for the late filing and to request the Appeals Chamber to nevertheless recognize the Reply as timely filed. Although the Appellant has failed to do so, the Appeals Chamber will consider this Reply as validly filed for purposes of this decision under paragraph 16 of the Practice Direction on Formal Requirements for Appeals from Judgement (IT/201), 7 March 2002 (“Practice Direction IT/201”).
6 - Case No. IT-98-34-T, Judgement, 31 March 2003 (“Trial Judgement”).
7 - Notice of Appeal, p. 6; Revised Appeal Brief, p. 54.
8 - Revised Appeal Brief, p. 54.
9 - Pre-Submission Brief, paras. 1-2, 12, 16, 21, 31 (internal quotations omitted).
10 - See Practice Direction IT/201, para. 2.
11 - See Prosecutor v. Blagoje Simic, Case No. IT-95-9-A, Decision on Motion of Blagoje Simic to Amend Notice of Appeal, 16 September 2004 (“Simic Decision”), p. 4; Momir Nikolic v. Prosecutor, Case No. IT-02-60/1-A, Decision on Appellant’s Motion to Amend Notice of Appeal, 21 October 2004 (“Nikolic Decision”), p. 3; Prosecutor v. Blagojevic & Jokic, Case No. IT-02-60-A, Decision on Prosecution’s Request for Leave to Amend Notice of Appeal in Relation to Vidoje Blagojevic, 20 July 2005, pp. 3-4 (internal quotations omitted).
12 - Public Redacted Version of “Prosecution’s Respondent’s Brief to Mladen Naletilic’s Appeal Brief” Filed on 30 October 2003, 21 March 2005, paras. 6.1-6.28; cf. Simic Decision, p. 4 and Nikolic Decision, p. 3.
13 - Response, paras. 3, 22-23; cf. Simic Decision, pp. 4-5 and Nikolic Decision, p. 3.